Federal Ruling Could Set Dangerous Precedent Allowing Law Enforcement Access to WhatsApp

March 23, 2018

A recently unsealed ruling shows a federal judge granted the U.S. government permission to spy on a user of WhatsApp – what does this mean for users of the popular encrypted messaging app?

In early March a federal judge overturned a lower court’s decision by allowing the U.S. Department of Justice permission to install a surveillance device that allowed monitoring of communications on the encrypted messaging app WhatsApp. WhatsApp – which allows users to send encrypted texts and make internet-based calls – has surged in popularity in recent years as the public looks for solutions to mass spying by government and private entities. The National Law Journal reported on the case:

A federal judge this month granted the U.S. Justice Department permission to surveil a WhatsApp account as part of an ongoing criminal investigation, a decision that overruled a magistrate judge who had denied the government’s request to track communications over the encrypted messaging and internet calling service.

Chief U.S. District Judge Beryl A. Howell in Washington gave the Justice Department approval to install pen register and trap and trace devices to collect phone numbers dialed by the WhatsApp user, as well as phone numbers and internet addresses of incoming calls. The user was not identified and only referenced as “one of several subjects of an ongoing criminal investigation.” Pen Register and Trap and trace devices were the standard surveillance tool in the pre-cellphone era because they allowed law enforcement to obtain phone call metadata in near real-time from the telephone company. These devices are not supposed to give the government access to the actual contents of conversations.

Judge Howell’s decision was originally dated March 2 but was only unsealed last week. Howell’s ruling overruled a previous ruling from Magistrate Judge Deborah Robinson, who said the government would be required to provide more than just the user’s WhatsApp account number to gain access to the data. Robinson believed the government needed to provide the cellphone number connected to the WhatsApp account and the user’s service provider in order to gain access to the metadata. The National Law Journal notes that Robinson had previously denied similar WhatsApp requests, stating that the government was “seemingly utilizing ‘WhatsApp’ and ‘Service Provider’ interchangeably.”

However, the Department of Justice clarified that WhatsApp account numbers are the same as users’ phone numbers and thus WhatsApp was the service provider. The Justice Department filed an objection with Judge Howell citing an ongoing investigation and Howell agreed the government had provided enough information to continue their surveillance operation.

“As already discussed, a WhatsApp account number is the same as the phone number used to create the WhatsApp account. Thus, by providing the WhatsApp account number, the government has ‘provide[d] the cellular telephone number associated with the designated WhatsApp account,’ thereby alleviating the magistrate judge’s concerns,” Judge Howell wrote in the ruling. “That number, which is also the cellular telephone number for the user at issue, properly was provided in the government’s application.”

One could argue that the Justice Department and FBI are only looking for dangerous and violent criminals or terrorists, but you would have to ignore the massive surveillance apparatus that has been installed around the United States since 9/11. Make no mistake, this is about gaining access to every single communication involving a U.S. resident. Big Brother will not stop until they see, hear, and know every aspect of your life.